On September 20, stakeholders in the European publishing and library sectors released a Memorandum of Understanding (MoU) to facilitate broader access to books and related materials that are no longer in commercial distribution. The MoU, suggests Olav Stokkmo, president of IFFRO (the International Federation of Reproduction Rights Organizations) also addresses the availability of orphan works: “The MoU will solve the problem of orphan works,” Stokkmo told IP Watch, “because it will allow such content to be included in collective licenses.”
But despite this optimism, collective licensing cannot adequately moderate access to orphan works, because collective licensing frameworks too easily corral orphan books into the same pen as works that have known and locatable rightsholders, therefore unduly restricting orphan access. In other words, because collective license agreements include works without determinable rightsholders, they incorporate books for which some types of uses should not be governed by licenses at all.
The EU’s vision for access to orphan material has long been broader than the MoU suggests. Unfortunately, by presuming to manage orphans through collective licensing, the MoU subtly contravenes recommendations in previous EU reports, including “The New Renaissance: Report of the Comité des Sages,” and a May, 2011, draft directive on orphan works for the EU Parliament.
The Comité des Sages report, for example, envisions a cross-border directive on orphan works that could exist independently of collective license frameworks. It proposes that “to arrive at reasonable transaction costs for the digitization of out of distribution works, it may be necessary to collectively manage the rights to older out of distribution works.” [emphasis in the original]. However, it also asserts that it is vital to ensure cross-border recognition of orphan works: “An orphan work recognized as such in one Member State on the basis of a search in the country of origin, should be recognized as orphan across the EU.”
In contrast, the M0U is not as expansive: If “the scope of an Agreement…includes cross-border and/or commercial uses, the collective management organization may limit its license of works that are out-of-commerce to those of represented rightholders.” In practice, that could preclude access to books not only from authors and publishers who choose to expressly opt out of these collective agreements, but to orphan works as well.
The inclusion of orphans in collective licenses might also lessen the perceived need to conduct diligent searches, because works would be covered by default under a collective licensing agreement regardless of their status. This effectively de-incentivizes determining whether non-commercially available books without rightsholders are orphans. Because of this issue, the EU draft directive on orphan works observes that cross-border recognition of extended collective licensing arrangements cannot be assumed. “The absence of a diligent search prevents an approach based on mutual recognition of the orphan work status,” the directive states. “An extended collective license is also normally only valid in the national territory in which the statutory presumption applies.”
All of this matters because both the Comité des Sages report and the draft EU directive envision far greater access to orphan works than the MoU suggests. According to the EU draft directive, it is an EU-wide goal that:
“In order to promote learning and culture, Member States should permit libraries, educational establishments and museums which are publicly accessible, as well as archives, film heritage institutions and public service broadcasting organizations, to make available and reproduce orphan works, provided such use fulfills their public interest missions, notably preservation, restoration and the provision of cultural and educational access to works contained in their collections.”
Collective licensing frameworks are a handy tool for managing broad classes of access to works fitting certain conditions, such as books out of commercial distribution. However, we must carefully balance broad social and cultural aims against the particular interests of rightsholder organizations.